Fundamental Freedoms and proportionality of restrictions during the Coronavirus Lockdown

“Extraordinary times call for extraordinary measures“ is a saying oft-quoted to justify measures that evoke introspective instincts in the citizens. In emergent situations, there is no gainsaying that measures also ought to be emergent and rightly so.

A distinction, however, has to be carefully drawn and understood between extraordinary measures and extra-constitutional measures. The former can be sustained only as long as it does not militate against the latter.

Amidst the COVID-19 crisis, the government has ordered a nationwide lockdown and the citizens have moved into a state of virtual house arrest. Whereas there is no question on the imminence of ordering a lockdown in the present factual scenario, the nature, extent, and scope of the lockdown ought to be put to a legal scrutiny. Why is it important?

Primarily speaking, a lockdown is an all-pervasive order involving restrictions upon a bundle of civil liberties. The freedom of movement, freedom to carry on profession, trade or occupation of choice, and freedom to reside in any part of the country constitute the first layer of curbs in a lockdown.

The second layer of curbs is born out of instances of extravagance while implementing the first layer, thereby leading to a direct violation of the otherwise faceless right to life and personal liberty, as argued later.

What makes this scrutiny of lockdown to be of utmost importance is the fact that the power of state to order a lockdown and rights of citizens to resist disproportionate curbs on their civil liberties are both born out of the same document, the “holy document” in words of Justice Rohinton Nariman. The examination, thus, lies within the Constitution of India.

It is pertinent to note that the guidelines restricting freedom of trade/occupation/profession have been framed under the National Disaster Management Act, 2005.

Notably, these guidelines do not put a direct restriction on the freedom of movement. The movement of citizens is restricted through a web of executive orders passed under Section 144 of the Code of Criminal Procedure, 1973 coupled with the addendum issued by the Home Ministry and read with the colonial era Epidemic Diseases Act.

It is important, at this juncture, to note that the nature of lockdown varies from jurisdiction to jurisdiction, depending largely on the perception of the government as regards the ingredients of civic life in the country.

For example, during the lockdown, Italy allows citizens to exercise alone nearby the house; France allows outdoor exercise, walk within 1 km and taking dog out for walk; UK allows any one form of exercise (walking or bicycling). I am not inclined to argue whether India should allow such concessions too, because such decisions are largely driven by civic behavior, coupled with multiple other factors.

The fundamental source of ordering these restrictions can be traced to Article 19(5) of the Constitution and the fundamental basis of such restrictions is the concern of “general public interest”.

That there is a crucial distinction between the existence of power to impose restrictions and proportionality of such restrictions is a well settled exposition in the realm of constitutional law. In the present piece, our examination revolves around this distinction. While discussing their proportionality, I have examined the restrictions in light of their impact or effect on two classes of citizens - traders (right to trade) and migrant workers (right to movement).

In a country with huge socio-economic diversity, blanket restrictions of a pervasive nature could produce highly inequitable effects upon enforcement. Let us see how.

Various state governments have dictated mid-level industry and factory owners to ensure timely and full payment of wages to the workers despite complete lockdown of their operations. The effect of this restriction on freedom of trade is two-fold: stoppage of operations and the added obligation to pay timely salaries to the employees.

The intent behind this diktat is clear (and laudable) but the ultimate effect on the economic interests of an already shut business can be questioned as inequitable.

Arguably, such a direction is also traceable to the Directive Principles of State Policy under the Constitution. Article 38, for instance, guides the state to secure a social order with minimisation of inequalities in incomes, status and opportunity. However, Article 38 offers guidance for state actions and not for actions of citizens. Resultantly, the question that emerges here is: Whether the state can shift its burden of securing certain economic interests for one class of citizens on another class in the name of an endemic?

I doubt it.

I argue so because the net result of enforcing such a direction in the name of reasonable restrictions in general public interest would take the matters from Directive Principles of State Policy to fundamental duties of citizens. In other words, it would tantamount to an indirect method of enforcement of otherwise unenforceable fundamental duties upon the citizens.

A direction of this nature, in effect, puts the onus of “securing a social order” on the citizen (traders in our case) and sounds like a cryptic method of enforcing the fundamental duty to “render national service” when called upon by the state to do so.

One could argue that morality does not taint such a measure negatively because there should be no reason for citizens to evade their moral responsibilities towards each other in times of crisis. My problem, however, lies in the fact that such a course of action is not envisaged in the Constitution. In the absence of a law, certain executive directions cannot obligate citizens to perform economic duties for other citizens.

Restrictions under Article 19(5) could legitimately ask citizens to refrain from trading operations in public interest, but it would be disproportionate for such restrictions to step ahead and impose positive duties on the citizens in absence of a law. Though unwarranted, even if I look at it through the lens of morality, such civic responsibilities should be left as discretionary for the citizens and cannot be enforced by having resort to Article 19(5) citing abstract general public interest. To conclude, directions of the above-stated nature go beyond the permitted space of Article 19(5) and can be termed as disproportionate to that extent.

The migrant workers constitute yet another class of citizens facing inequitable consequences of the lockdown. The principle of proportionality of restrictive measures is based upon an inherent understanding that one uniform formula does not apply to all situations and all citizens at all times.

It is so because natural circumstances in a society have placed citizens at different rungs of the ladder with varied quality of liberties enjoyed by them. If the quality of liberties vary inter-se citizens, the impact of restrictions will also vary. Unintelligent restrictions imposed at once on distinctly placed citizens without taking into account their unequal placing in the society is a typical case of unreasonableness of restrictions, to say the least.

The whole country was witness to the spectacle of migrant workers being labelled as enemies of lockdown. We failed to note that underneath the spectacle, at play was the automatic conversion of a class of citizens into violators of a bunch of statutory provisions solely because of disproportionate restrictions imposed unintelligibly upon them.

I use the word "unintelligibly" because restrictions having such massive economic impact on the citizens ought to take into account their socio-economic status. It is their social standing that directs their behaviour in the face of restrictions because in times like these, even to abide by the law becomes a luxury not everyone can afford.

Without diverting, I would also call upon the readers to note how the failure of proportionality standards under Article 19 can be co-terminus with failures of equality standards of Article 14 and basic right to a dignified life under Article 21.

In a society deeply divided in economic and social terms, ​the quality of rights, desirability of restrictions and effect of restrictions upon the citizens can never be the same, and this fundamental feature of our society puts extra onus upon the state to ensure the standards of proportionality.

As argued above, imposition of blanket restrictions could lead to colorisation of one group as violators of the law solely because of their social placing. In times of crisis, where concerns of public health loom large, it is all the more important to ensure that the law does not take the backseat because state-citizen intercourse is more intimate in such times, and needless to add, whenever state and citizens interact, the Constitution must always register its intervention.

The author is Delhi-based lawyer currently working at the Supreme Court of India as a Law Clerk-cum-Research Assistant.